August 30, 2011
A FOUR-year old girl who had been informally given to a Sydney couple under a traditional Samoan adoption arrangement should return to her parents in Samoa, the Family Court has ruled.
The girl known as ”S” had been promised to a childless great aunt and her husband before birth, but had lived with her parents and seven siblings in Samoa until she was nearly two years old.
Within days of delivering S to the couple in western Sydney in February 2009, the girl’s mother decided she wanted to keep the child. But before she could leave Australia, the couple – known in court as Mr and Ms Tomas – had filed proceedings which stopped S from leaving.
Two years later, the court has ruled that it would be best for S – a happy and healthy child who related to both sets of parents – to return to Samoa.
But the case raised wider issues about the entry of children into Australia and highlighted tensions between federal immigration and state-based adoption laws, said Associate Professor Jennifer Burn from the faculty of law at UTS.
S had entered Australia on a New Zealand passport, entitling her to live in Australia without further checks.
The mother’s lawyers had argued this path could lead to child smuggling or trafficking and said the Tomases had tried to use family law proceedings to ”rectify arrangements that are not acceptable under Australia’s immigration and adoption laws”.
Associate Professor Burn said in overseas adoptions cases there should be ”greater scrutiny to ensure that the birth parent freely, without coercion, and in the absence of fraud or any other form of malpractice, surrenders the child for adoption”.
Lawyers for S’s mother argued the Samoan ”adoption” did not meet the requirements for recognition in NSW, but Justice Ian Loughnan found this ”does not make it an illegal adoption”.
The court ruled that S is to be allowed to speak to the Tomases by telephone twice a week.
Justice Loughnan said all the parents would care for the child well but it was in her best interest that she live within Samoan culture.